from the there's-a-bit-more-to-look-at-than-that... dept

As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee.

The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things.

Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequentlydisagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online.

That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome.

That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman.

In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time.

There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702.

So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business.

from the outright-lies dept

As we've pointed out for many, many years, Senator Ron Wyden has been banging the drum, asking the Director of National Intelligence to reveal how many Americans are having their communications swept up under Section 702 of the FISA Act. We have posts going back to 2011 of Wyden asking for a number and being stonewalled. At the time, many tried to brush it off as nothing to be concerned about -- after all, the "F" in FISA is supposed to stand for "Foreign" and so it was assumed (incorrectly) that Americans' communications were mostly unlikely to be caught up in the matter. Of course, as we now know quite well, that's not even remotely true. Between the Snowden revelations and other declassified FISA court orders, we know that tons of Americans had their communications swept up, without any kind of warrant. Throughout all of this time, Wyden kept asking that question over and over again, without getting any answers. Last year, others finally joined in, with a large bipartisan group from the House Intelligence Committee all (finally!) asking the same question.

Eventually, late last year (after years of stalling), then Director of National Intelligence, James Clapper, said that his office would deliver an estimate to Congress. Indeed, the House Judiciary Committee worked with Clapper's office to set up the parameters for that number, noting that it needed to be provided "early enough to inform the debate" about the renewal of Section 702, and had to be provided in a format that could be provided to the public, rather than kept in secret. That estimate never came. This issue came up again during the hearings for Clapper's replacement, Dan Coats, who also said he would try to get Congress a number. Specifically, he told Wyden: "I'm going to do everything I can to work with Admiral Rogers in NSA to get you that number."

As we noted, two months ago, another bipartisan letter was sent to Coats, this time signed by both the chair of the committee, Bob Goodlatte, and the ranking member, John Conyers. That generally means that the Committee is getting serious about stuff. In the letter, they noted that they were still waiting on Coats to deliver this number and expected to see it soon.

Then, yesterday, there was a public Senate Intelligence Committee hearing over the issue of the 702 renewal. While most of the press is focused on the refusal of those testifying to say whether President Trump had spoken to them about various investigations concerning Russia, there was something else concerning that was brought up. Coats, despite his earlier promises and the promises of his office, is now saying that it would be impossible to give a number.

Not surprisingly, for the folks in Congress who have been insisting on getting this number (and giving it to the public), this... did not sit well. When it was Senator Wyden's turn to question the panel, he went off on Coats for going back on his word.

This morning you went back on that promise and you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out.

Later in that exchange, there was this exchange (which, if you watch it, involved both men being fairly testy with each other):

Wyden: Can the government use FISA 702 to collect communications it knows are entirely domestic?

Coats: Not to my knowledge. It would be against the law.

As Marcy Wheeler points out, that exchange may prove to be similar to Wyden's now infamous question to Coats' predecessor, Clapper, about whether or not the NSA collected information on millions of Americans (the "not wittingly" response, which was later shown to be completely bogus). Wheeler points out that for Coats to actually believe that, it would appear that he doesn't know how 702 is actually used, even though he signed a memo about this very thing. Wheeler points to the recent FISC opinion reauthorizing 702 data collection that states that if the Director of the NSA signs a waiver for all of the domestic collections, then the NSA can still collect a wholly domestic communication under 702. That FISC opinion cites a March 30th memo that Coats would have signed as the justification for this argument. So for him to now say that it's illegal for the very thing his own memo from March says is okay... seems like a serious problem.

And Wyden's not the only one upset about this. Since this was a Senate hearing, Rep. Conyers wasn't there, but he put out a blistering statement calling Coats' statements "unacceptable."

The intelligence community has—for many months—expressly promised members of both parties that they would deliver this estimate to us in time to inform our debate on the reauthorization of Section 702. As late as last August, we had discussed and approved the specific methodologies that the NSA might use to make good on their promise.

Today, Director Coats announced that the estimate is ‘infeasible’ and will not be forthcoming. I find that outcome unacceptable.

Over the course of the last year, we believed we had worked past the excuses we are offered today. The nation’s leading civil liberties organizations see no threat to privacy in this project, and have said so publicly. The agencies demonstrated to us how they might perform this analysis without significant diversion of resources. I am deeply disappointed in a return to these old talking points.

Section 702 is built on trust. It will be more difficult to find that trust as we move forward with the debate.

As we discussed earlier this week, a bunch of Senators have already been pushing a permanent renewal of 702 with no changes at all. As the debate heats up on the renewal of Section 702 ahead of its expiration later this year, we're going to need Congress to hold the intelligence community to its promise to reveal at least some data on how these programs impact Americans' communications.

This is a bad and dangerous idea. It's one that's designed to give Hollywood and the recording industry even more power and control over an already deeply captured agency. As it stands now, having the Copyright Office in the Library of Congress provides at least some basic recognition of the actual intent of copyright law, as established by the Constitution to Promote the progress of science. That is, as we've pointed out for a long, long time, the intent of copyright is to benefit the public. The mechanism is to provide temporary monopolies to creators as an incentive, before handing the works over to the public. Yet, the Copyright Office eschews that view, insisting that the role of the Copyright Office is to expand those monopoly rights, and to speak out for the interests of major copyright holders (rarely the creators themselves).

Either way, by making this a Presidential appointment, the MPAA and RIAA know that it will give them significantly greater say over who leads the office. Right now they can (and do!) lobby the Librarian of Congress on who should be chosen, but the Librarian gets to choose. One hopes that the Librarian would take into account the larger view of copyright law, and who it's actually supposed to benefit -- and we're hoping that the current Librarian will do so (if given the chance). But making it a Presidential appointment will mean heavy lobbying by industry, and much less likelihood that the public interest is considered.

The usual think tankers and industry folks will tell you -- incorrectly -- that the Copyright Office is only in the Library due to "an accident of history." But that's not the case. The role of both overlap dramatically -- collecting, organizing and cataloging new creative works. Almost everyone agrees that the Copyright Office needs to be modernized, and that the previous Librarian failed (miserably) to do so. But because we had a bad librarian in the past is no reason to remove the Copyright Office entirely from the Library and disconnect it completely to its constitutional moorings designed around getting more creative works to the public.

Make sure to let your Congressional Representative know not to support this bill -- especially if they're members of the House Judiciary Committee. Rep. Goodlatte has said that he'd only propose copyright reform bills that have widespread consensus. This is not such a bill.

from the of-course-it's-not-good dept

The House Judiciary Committee has been "exploring" various copyright reform proposals for a few years now, asking for feedback, holding a "listening tour" and more. Through it all, it seemed pretty clear that the Judiciary Committee is (reasonably) fearful of getting SOPA'd again, and thus was trying to figure out some less controversial proposals it could push forward first to see how they worked. Two, in particular, have been brought up multiple times: moving the Copyright Office out of the Library of Congress... and creating a "small claims court" for copyright infringement. And it appears that's what the Judiciary Committee is now moving forward on, even though both are pretty bad ideas.

Note the very careful "these policy proposals are not meant to be the final word on reform in these areas." That's code for "okay, okay, we're testing the waters here, are people going to freak out about this...."

Anyway, the proposals in question are not horrible, but they're certainly not good either. Most of the attention will be focused on the Copyright Office stuff, but it's the small claims court proposal that is potentially much more nefarious and a much bigger deal. There are almost no details here, but this is what the proposal says:

The Copyright Office should host a small claims system consistent with the report on the issue released by the Copyright
Office. The small claims system should handle low value infringement cases as well as bad faith Section 512 notices. The
Register should be given the authority to promulgate regulations to ensure that the system works efficiently.

As we've seen, already copyright is often used as a way to stifle free expression. Mere threats of lawsuits, along with DMCA takedown letters, have become a very effective way to create chilling effects against content someone doesn't like. Adding in the ability to more easily sue and take people to court -- even if the eventual judgment may be for lower dollar amounts -- is tremendously problematic. If anything, it will just become an incredible tool for copyright trolls. It will legitimize their business model, which is to get a large volume of settlements that are in the hundreds or low thousands of dollars anyway. Obviously, the fact that this court might also handle "bad faith Section 512 notices" (i.e., DMCA takedowns) is designed to appease people who are concerned about the chilling effects here, but it's not clear that will help very much.

Also, somewhat bizarre is that earlier in the document (which we'll get to), they say that the Copyright Office should remain in the legislative branch. Which would then make this small claims court a part of the legislative branch. And that just seems... weird. I guess that's why they refer to it as a small claims "system" rather than a small claims "court."

The issue that's going to get more attention, however, is the attempt to pull the Copyright Office away from the Librarian of Congress' control. This has been something that the Copyright Office itself (and Hollywood and its friends) have been agitating for for some time. The proposal here looks like (again) the Judiciary Committee wants to thread the needle of not technically moving it out of the Library of Congress (the proposal doesn't say one way or the other), but basically giving the Copyright Office full autonomy from the Library, and making the head of the Copyright Office subject to Congressional appointment, rather than at the will of the Librarian of Congress:

The Register of Copyrights and Copyright Office Structure

The Copyright Office should remain part of the Legislative Branch where it can provide independent and timely advice
to Congress on copyright law and policy. Furthermore, the Copyright Office should have autonomy over its budget and
technology needs.

Currently, the Register is not subject to the same nomination and consent process as other senior government officials.
To ensure that the American people have an opportunity to provide input into the selection of future Registers of
Copyright through their elected officials, the next Register and all that follow should be subject to a nomination and
consent process with a 10-year term limit, subject to potential re-nomination. The Copyright Office should also add
several positions to advise the Register including a Chief Economist, Chief Technologist, and a Deputy Register.

Copyright Office Advisory Committees

As copyright creation and distribution rapidly changes due to technological advances, the Copyright Office needs to have
quicker information regarding marketplace changes as it develops policies and provides guidance to federal agencies.
Other federal agencies have standing advisory committees that enable a more efficient knowledge transfer from the
private sector to federal agencies. This model should be duplicated at the Copyright Office.

The Copyright Office of the future should have a combination of permanent and ad-hoc advisory committees
to advise the Register on critical issues. Members of these committees should reflect a wide range of views and
interests. Permanent advisory committees should be created that focus on issues that include but are not limited to
the registration and recordation system, public outreach efforts, access for the visually impaired, and issues related to
libraries, museums, and archives. To ensure that a diverse set of voices is represented, committee membership should be
term limited and the ability of individuals to serve on more than one committee should be limited.

The advisory committee plan again seems like it's trying to appease all sides, but one wonders how it will work in practice. As we've seen with the USTR, the advisory committees have become basically captured by industry lobbyists (despite rules against lobbyists being on those committees), and the end result is that the USTR tends to take instruction from a small group of large, entrenched interests, rather than the public. It seems likely that the same thing would happen here. A Chief Economist is also a loaded position. There are plenty of economists who would look at the actual public benefit to different copyright proposals, but too many economists are likely to just focus on the topline monetary impact on legacy industries, painting a skewed portrait and continuing the false notion that the point of the Copyright Office is to create more and more copyrights, rather than create a plan that actually "promotes the progress of science" as the Constitution requires.

Since the Judiciary Committee insists that this is just them putting out some ideas for comment, it's going to be important that we let them know the many, many pitfalls of these suggestions -- and let them recognize that if these plans are, as seems likely, weighted just to benefit a legacy industry that has a history of fighting innovation -- that will not be acceptable to the public.

from the not-very-good-at-my-job dept

As we've been discussing, the FCC is cooking up a plan to bring much-needed competition to the cable set top box market. As a fact sheet being circulated by the agency (pdf) notes, the FCC hopes to force cable operators to offer their existing cable lineups to third party hardware -- without the need of a pesky CableCARD. This would obviously disrupt the $21 billion in annual, captive set top rental fees enjoyed by the industry, and the competitive set top box market that emerges would likely drive more users than ever to alternative streaming options.

As such, the cable industry has been having a monumental hissy fit. This has ranged from threatening lawsuits to publishing an absolute ocean of misleading editorials in news outets nationwide, claiming the FCC's plan would destroy consumer privacy, increase piracy, hurt programming diversity, and make little children cry.

Not too surprisingly, the cable and entertainment industry has now gotten some members of Congress to contribute to the hysteria. Note that the FCC's proposal makes it abundantly clear that under the proposal, a cable provider can "determine the content protection systems it deems sufficient to prevent theft and misuse, and will not impede the introduction of new content protection systems." Yet in a letter sent to the FCC this week, Representatives Bob Goodlatte and John Conyers say creators have "shared concerns" that the FCC's plan will lead us down the road to rampant piracy. You know, like Popcorn Time:

"As Members of the House Judiciary Committee, which oversees our nation's copyright laws, we recognize the harm the American economy caused by the theft of copyrighted works. Creators have shared concerns that under the FCC's proposed rule, future set-top boxes or their replacements could purposely be designed to distribute pirated content obtained from sources that primarily offer stolen content. For example. apps such as Popcorn Time that focus on providing access to piratical content have tried to match the form and ease of use of legitimate apps to mark the theft of copyrighted content. Creators are legitimately worried about the prospect that future set top boxes, or their functional equivalents, could incorporate apps such as Popcorn Time or its functionality, or otherwise lead to the unauthorized distribution of copyrighted works."

From the letter it's pretty clear the Representatives -- and the "creators" expressing their worry -- don't actually understand what the FCC is trying to do. Conyers and Goodlatte throw Popcorn Time into the mix seemingly at random, given the FCC's proposal has absolutely nothing to do with the app.

For better or worse, under the FCC's proposal nothing about copy protection will actually change. Users will still pay the cable industry for service, those users will just be able to access that same programming on hardware from the likes of TiVO, Google, Amazon, whose hardware will already be in most consumer homes. And while these devices are more open than cable boxes, it's bizarre to suggest this shift results in some kind of piracy free for all. In fact, having more open set top boxes not ensconced by the cable industry's walled garden approach will present consumers with access to more legitimate streaming content sources than ever before. That's what the cable industry is actually worried about.

The piracy bogeyman was also recently trotted out in an editorial by "The Walking Dead" Producer Gale Anne Hurd, who tried to argue that making the set top box market more open and competitive would only drive users to pirated content because hey -- a more open device might actually include a browser and access to the actual Internet. That's again missing the forest for the trees on an absolutely mammoth scale, ignoring that open platforms and an exponential explosion in access to streaming services means more ways to access her content legitimately than ever before.

Again, it's not clear if the people yelling about piracy just don't understand how this all works and are just being "informed" by the wrong people, or if they're intentionally aiding the cable industry and mis-characterizing what the FCC is planning (probably a combination of both). But make no mistake: the TV industry's opposition to set top box reform has nothing to do with being worried about piracy, diversity, security, or the welfare of puppies -- and everything to do with protecting a stagnant industry from market evolution and lost revenue.

from the good-for-them dept

Congressional hearings involving law enforcement and intelligence folks tend to be fawning affairs, with most of Congress willing to accept whatever these guys have to say. Sure, you'll always have a few people critical of certain aspects, but generally speaking, Congress is especially friendly to the FBI, NSA, CIA, etc. So it must have come as a bit of a shock to FBI Director James Comey that during a long House Judiciary Committee hearing yesterday, they seemed pretty pissed off at Comey's belief that the courts should force Apple to help him open up encrypted iPhones.

One judiciary member questioned how the FBI managed to mess up so badly during the San Bernardino investigation and reset the shooter’s password, which is what kicked this whole controversy and court case in motion in the first place. And if the case was such an emergency, why did they wait 50 days to go to court? Another member questioned what happens when China inevitably asks for the same extraordinary powers the FBI is demanding now. Others questioned whether the FBI had really used all the resources available to break into the phone without Apple’s help. For example, why hasn’t the FBI attempted to get the NSA’s help to get into the phone, since hacking is their job?

[....]

More than anything, though, the members of Congress expressed anger that the FBI director didn’t follow through earlier on his stated intention to engage in a debate in Congress and the public about the proper role for encryption in society. Instead, he decided to circumvent that debate altogether and quietly go to court to get a judge to do what the legislative branch has so far refused to do.

“I would be deeply disappointed if it turns out the government is found to be exploiting a national tragedy to pursue a change in the law,” Rep. John Conyers (D-MI) told Comey.

[....]

“But what concerns me, Mr. Chairman, is that in the middle of an ongoing Congressional debate on this subject, the Federal Bureau of Investigation would ask a federal magistrate to give them the special access to secure products that this committee, this Congress, and the administration have so far refused to provide,” he said. “Why has the government taken this step and forced this issue?”

He went on to speculate that the reason could be found in an email from “a senior lawyer in the intelligence community,” obtained and published in part by the Washington Post in September 2015. The email said that the “the legislative environment [with respect to mandating backdoors] is very hostile today,” but that “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

“I’m deeply concerned by this cynical mindset,” said Conyers, implying that the Department of Justice and the FBI might be exploiting the San Bernardino attacks in order to mandate backdoors.

To be fair, contrary to what some articles are saying, this is not the first time Congress has been skeptical about the FBI's view on the encryption wars. A little less than a year ago, a hearing set up by a different committee, the House Oversight Committee included some similar points with Congressional reps being quite skeptical of the claims by law enforcement about the need for encryption backdoors. However, the drumbeat from Congress appears to be getting louder -- and that's a good thing.

Of course, some of the annoyance from Congress appears to just be about who gets to decide what happens here. That is, some of the anger seemed to be over the DOJ's decision to rush to the judicial branch, rather than let the legislative branch figure out what it wants to do. However, there's definitely a clear (and, amazingly, bipartisan) group of folks in Congress who recognize that the FBI's arguments about how it "needs" this information is a bunch of hogwash.

from the no-longer-just-suggestions dept

The DOJ issued its formal guidance on Stingray devices and warrants back in September. While it was a nice afterthought, it sported an underdeveloped set of teeth. The biggest problem? It's nothing more than guidance. It's a set of internal policies that the DOJ's underlings are expected to follow. Any misuse will presumably be subject to written reprimands and little else.

As it is only guidance, there's very little accountability added. If an agency violates the new policies during the course of an investigation, the violated person doesn't have the option of seeking redress through the judicial system.

This policy guidance is intended only to improve the internal management of the Department of Justice. It is not intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative, judicial, or any other proceeding.

Whatever restraints the DOJ is applying to itself matter only to the DOJ, which can perform its own internal investigations and mete out whatever disciplinary actions it feels those coloring outside of the lines deserve.

Reps. Jason Chaffetz (R-Utah), John Conyers (D-Mich.), and Peter Welch (D-Vt.) on Monday introduced the Stingray Privacy Act, which would limit the government's use of so-called "stingray" devices— surveillance tools that pretend to be cell towers so they can intercept mobile network traffic.

The bill would only permit a government agency to collect data using a stingray if it obtained a traditional search warrant or if it carried out its investigation under the Foreign Intelligence Surveillance Act (FISA), which does not permit the targeting of Americans.

No evidence collected through a stingray without a warrant or outside the FISA process could be used in a trial, congressional hearing, or other federal, state, or local proceeding.

The DOJ's better-late-than-never guidance could become law, turning violations of the former policies into actionable civil rights complaints. Better yet, the abuse of Stingray devices could lead to the dismissal of improperly-obtained evidence. The codification of the warrant requirement also means agencies will have more trouble obscuring the origin of introduced evidence and will be creating a discoverable, possibly FOIA-able paper trail.

The bill has bipartisan support, which is always helpful. It also has a bit of propulsion thanks to the gradual uncovering of widespread usage for bog-standard criminal investigations and widespread secrecy that has led to bogus FOIA request denials and the dismissal of criminal indictments.

The question now is whether the bill will survive intercessions on behalf of the DOJ, which would like to appear Strong on Stingrays but without actually having to deal with the public's complaints of civil liberties violations. Expect to see child killers, kidnappers and terrorists seated at the stakeholders' table on behalf of the FBI and others if this bill gains momentum.

from the want-to-try-that-again? dept

Every couple of years, like clockwork, the RIAA gets its friends in Congress to introduce some form of a performance rights bill, that would require radio stations to pay compulsory licenses to performers of the music they play on the radio. Every year it goes nowhere because the radio owners' big lobbying group, the NAB, is about equal in power to the RIAA. So the two sides fight it out, donate a lot of money to Congress, and nothing changes. There's generally a lot of FUD thrown up in the process, along with some crap about "fairness" when that's not what they're really pushing for at all. It's all about more revenue for the record labels and that's it. If you're unaware, playing music on the radio already requires payments to songwriters/publishers, but not to performers. The reason being that being on the radio acts as promotion, allowing the musicians to make it up elsewhere. We know that this happens because of the widespread practice of payola, in which the labels pay the radio stations to play their music. If it wasn't worth it to get on the radio, the labels wouldn't regularly get involved in payola scandals. And yet, they do, because radio play (even today) remains great advertising for music.

We thought things had reached a new low four years ago when Rep. John Conyers sponsored one of these bills and insisted that radio stations playing musicians' music was the equivalent of slavery. Apparently, the RIAA liked that line so much it fed it to a different Congressional Rep. this year. RIAA darlings Jerry Nadler, Marsha Blackburn and Ted Deutch have joined Conyers in releasing the latest version of a performance rights act, this time called the "Fair Play, Fair Pay Act of 2015" and the RIAA's spin doctors somehow decided that having Rep. Nadler use the slavery line was a good idea:

Previously, radio complained about the economy, asserting that they simply couldn’t afford to pay performers. But as far as the radio industry is concerned, “it's never the right time,” Nadler said. “What other industry says, ' We can’t afford to pay our workers; We want them to work for free,'” he cracked. “We got rid of that argument here in the U.S. in 1865," referencing the abolition of slavery legislated by the 13th Amendment.

I'm sorry, but in no possible way is promoting someone's music on the radio the equivalent of slavery. To say so is not just insulting and offensive, but it's ridiculous. You can argue about the appropriateness of royalties, compulsory rates or anything else -- but to argue that getting played on the radio without direct compensation (despite all the indirect compensation) to slavery is just flat out ridiculous. Nadler doesn't get paid each time he goes on TV to talk about whatever bill he's supporting, does he? Is that slavery? No, it's promotional, just like music being played on the radio.

Just the fact that Nadler has to resort to this silly and tired argument again, despite it flopping five years ago, should tell you all you need to know about this weak attempt by the RIAA to squeeze out more money without doing anything different.

from the when-reality-sets-in dept

It's hard to imagine looking at the absurdly excessive copyright penalties on the books and thinking, "Hey, maybe these should be a bit higher." But Congress has shown itself to be exceedingly imaginative when it comes to cranking up copyright, so perhaps it is no surprise that in yesterday's hearing on those penalties—covering statutory damages and criminal sanctions—a number of witnesses and Representatives alike seemed to think that those remedies are insufficient.

More surprising, though, was an unexpected moment of clarity from Michigan's Rep. John Conyers, a staple of the Judiciary Committee's reform hearing process and a reliable supporter of ratcheting up copyright enforcement capabilities. Conyers broke the first rule of copyright exceptionalism club by actually talking about the fact that this discussion would seem pretty unreasonable—even by Congressional standards—in areas outside of copyright.

Specifically, Conyers referred to the very real problem of overcriminalization, which absolutely afflicts copyright policy. This, after all, is the area of law that has made us an "Infringement Nation," routinely racking up millions of dollars in hypothetical damages throughout the course of an average day. Conyers generally pushes back against this overcriminalization, but here he is arguing for misdemeanors to be made into felonies—what gives?

If you can't see that, here's the key clip, though it helps to watch the video:

Conyers: Mr. Assistant Attorney General, what else can we do besides addressing the felony streaming issue? It seems like... uh... once we get that going... uh... {long pause}... Well, it seems to me like there's an underprosecution. Normally, I... {pause} come to the committee complaining about overcriminalization. {Looks around} And now I find myself in the awkward position of saying... uh... let's make a felony of somebody's misdemeanors. Can you give me some comfort in some way? {awkward smirk}

David Bitkower, the witness from the Department of Justice, basically says that from the DOJ's perspective there is no overcriminalization problem, which is unsurprising. Then Nancy Wolff, a witness from the law firm of Cowan, DeBaets, Abrahams & Sheppard, adds that the ridiculously high damages helps plaintiffs force defendants to settle. Finally, Public Knowledge's Sherwin Siy notes that Conyers's question was spot on: our current excessive penalties do encourage certain plaintiffs to pursue non-meritorious claims, and that's something to be concerned about.

You can see on Conyers' face that he was looking for some resolution to his cognitive dissonance, but he couldn't find it. Copyright exceptionalism is simply inconsistent with fact-based policy—so when it comes time to reconcile the two, you're going to have a bad time.

Let's hope this moment was a lawmaker beginning to see the light. As EFF lays out in our brand new copyright whitepaper, "Collateral Damages", excessive and unpredictable penalties can chill free speech and stifle innovation. On such an important issue, it's encouraging to see lawmakers breaking from the standard script.

from the speak-up-now dept

Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping. The Defense Appropriations bill is expected to hit the House floor sometime soon, under open rules, meaning that the amendment in question won't be blocked by the House Rules Committee, as happens on a variety of other bills.

The amendment has powerful bipartisan backing, sponsored by Reps. James Sensenbrenner, Thomas Massie and Zoe Lofgren, along with co-sponsors Reps. Conyers, Poe, Gabbard, Jordan, O’Rourke, Amash, and Holt. Having Sensenbrenner bring out this amendment is a big deal. This amendment would restore at least one aspect of the USA Freedom Act that was stripped out at the last minute under pressure from the White House. Sensenbrenner sponsoring this bill highlights that he's clearly not satisfied with how his own bill got twisted and watered down from the original, and he's still working to put back in some of the protections that were removed. Conyers is a powerful force on the other side of the aisle, whose support for the USA Freedom Act was seen by some as a signal that the bill was "okay" to vote on. Having both of them support this Amendment suggests that neither were really that satisfied with the bill and felt pressured into supporting it.

While this Amendment doesn't fix everything, it is an important chance for members of Congress to show that they really do support protecting Americans' privacy. But they need to know that. Please contact your Representative today to let them know you want them to support this amendment. The EFF and others have set up a website, ShutTheBackDoor.net, to help you contact your official. Please do so today.